Ah, the First Amendment. Our high regard of the right to free speech borderlines worship- to suggest that one should ‘watch their words’ could bring forth either livid accusations(Stop Infringin’ mah rights!) or proud exclamations (“It’s a free country!”). We treasure our capacity to say what we want when we want to, no matter how thoughtless, careless, or offensive it may be. Now, before we get all high and mighty with our ‘Merican rights we may want to remember that there are a few slight, small, teeny-weeny exceptions to First Amendment. Here goes: The Court has decided that the First Amendment does not fully protect commercial speech, defamation, speech that may be harmful to children, speech publicly broadcast, and public employees’ speech. The Court provides NO protection to obscenity, child pornography, or speech that constitutes “advocacy of the use of force or of law violation.” Lastly, speech may be restricted to serve a “compelling interest” of the government.” Whew…got that? No, you didn’t. Why? Because this is Yale; we wouldn’t be learning about it if it were straightforward.
Ok, well most of those restrictions make sense if pursued for the right purposes. The problem comes when prohibited uses of free speech such as ‘defamation’, ‘speech harmful to children’, and ‘advocacy of law violation’ are introduced to a massive public forum, where recklessness enabled by anonymity runs wild. Changes in technology and society yield parallel changes or adjustments to our laws as well. And this is, of course, a good thing. Who knows what television, radio, or phone service would look like if we didn’t have the government involved?
But now that we have the Internet, it’s a completely different ballgame. The instantaneity and pervasiveness of the Internet explodes the potential for individual free expression. But, as it turns out, it also becomes infinitely easier to piss off lots of people too. Whether it be accusing your employer of being a Nazi Heiress, uploading smut, luring an unsuspecting victim to the sweet dulcet tones of Rick Astley, or just generally being offensive and/or a dick, the Internet allows you to do all of these things and from behind the safety of a computer screen. While this may raise some concerns regarding the limits of individual expression on the net, the eyes of the law view such expression as mostly acceptable or necessary evil. The Court has time and time again chosen to favor the larger picture, embracing wide expression and thought even if offensive. If the court were to attempt to curtail anything that might be deemed ‘offensive’, it would also undermine the extent and breadth of the First Amendment in the long run. As of now it is only possible to make generic and broad restrictions against content; content would be eliminated in clumps rather than carefully selected and valuable forms of expression would be lost in the process.
The CDA (Communications Decency Act), for example, attempted to regulate both indecency and obscenity on the Internet. (The difference? I’m still not sure.) However, the Supreme Court determined that the vagueness of the terminology of the bill, specifically the scope of indecency(nobody really knows what indecency actually is or means) ultimately would lead to excessive self-censorship and thus consequently would place a bottleneck on free and productive expression. (Reno vs. ACLU) I can admit that if it weren’t for the free form of the internet I probably wouldn’t post half the things I do on the Internet. The amount of things I search would be cut down to about 10%…my love for absurdity leads me to strange places.
I admit, there’s a lot of porn on the Internet. A completely unscientific study conducted by me and c-c-c-combobreaker.com, a random google image generator, indicates that upwards of 60% of all online images are pornographic. (The actual percentage of pornographic websites is contested; I’ve found numbers ranging from 1% to 12%, which is pretty small compared to the wild claims you here on T.V.) While the general ease of access to pornographic material to kids these days is troubling, it is not worth restructuring the essential form of the internet itself. Neither filters nor regulation to ‘protect our youth’ were ever viable, much less effective, solutions. If you find out your 7 year old has been watching porn, and you can’t either a) talk to your kids about it or b) prevent it from happening in the future, you have problems much bigger than the breasts your child might have seen. I feel that the issue at its core is very simple, yet the American cultural attitude toward sexuality is deeply flawed. Our tendency to repress prevent exposure to sexuality contains within itself the seeds of its own destruction. An Internet filter that prevents your kids from seeing naked people isn’t going to change that anytime soon.
“Code is Law”
Network Neutrality has been a rallying cause for Internet users for close to 10 years. Net neutrality is, simply stated, the prevention of the centralization of the Internet by ISPs and maintenance of free and open access to online content for everyone. I never saw the deep two-fold connection between net neutrality and free speech until I read Balkin’s article on Web access.
Balkin states that section 230 of the Telecommunication act is the cornerstone of our ability to freely communicate on the net. Section 230 states that providers of services (e.g. phone service or internet service) are not liable for the actions of their users, thus giving service providers little or no incentive to limit access to their subscribers. I think its pretty apparent that without this essential clause we would not have what we love and hate about the Internet today: Lol-cats, hate websites, Facebook, chat forums, or any user-generated content for that matter. The brilliance or crud you see on the net can all be attributed to the freedom of its users. Just imagine receiving letters from your ISP because of a comment you posted instead of that copy of “Along Came Polly” you downloaded. However, unlike that movie download, which you’ll probably do again but in a smarter way (you just can’t get enough of Ben Stiller’s bipolar hilarity), you’ll be much less likely to add to online discussion in a frank and honest way ever again. Its because of the structure of the Internet that users can, to an extent, pioneer their own environments.
Techno-Scholars, like Wendy Chun , have written extensively on the distinctions between cyberspace and the Internet. In this school of thought, cyberspace, the space we inhabit online, is really more an illusion of agency and freedom than control as such. Web’sites’, electronic ‘mail addresses’…all of this is essentially a cover for a physical infrastructure that is subject to the control of programmers, technological limitations, corporations, and the law that governs how these all will operate and co-exist. The freedom and innovation we enjoy today is precarious and unstable. Cyberspace is ephemeral, transient, dynamic and constantly changing. Should one ISP decide to set a precedent of throttling or setting up barriers to access and happen to make a ton of money doing it, they’ve set a new precedent for the rest of the industry and the innovation we see in startups and major companies alike would come to a screeching halt. Here, I’m preaching to the choir (virtually everyone enrolled in this class is well aware of how the Internet works and the issues surrounding its use,) but the same cannot be said for the most of America.
The issue of free speech that interweaves through every topic we’ve discussed thus far (copyright, fair-use, cyber-bullying, re-mix…I could just go through the syllabus) comes full circle. Free speech is simultaneously contingent upon itself, because it encourages innovation (companies are free to create services that prosper precisely because they can take advantage of the unfiltered-ness of the net) and new products that in turn enable creativity and open expression by the every-man; both of which are contingent upon the business models of those who create the Internet. Unfortunately, a business model is something that can change radically with time, and is often detrimental to consumers. Is a vocal minority of active web users enough to prevent the re-creation or restructuring of the Internet? I hope so. In any event, plenty has been said about network neutrality, so I won’t keep blabbering on about something most of you have probably already read tons of literature about. I am of course obliged to include a ‘call to action’!
Rise up, Webizens!
But seriously…
Final Words
I’d like to share some super cool content or application on the topic with you that’ll make you think I’m also a super cool, hip, and happenin’ fella , but I’m going to be honest; while I consider myself to be above average on the scale of computer know-how, truthfully I’m of the “Top 40” variety when it comes to computers. Whenever I talk to a friend about an awesome new application or web-service I’ve found, or I think that I’ve stumbled upon the next huge trend in computing before anyone else, my excitement is met with a condescending smirk. “Dude, that’s been around for years.” or “I can’t believe you haven’t seen that before.” are not all too uncommon for me to hear. Maybe my friends are uncommonly tech-savvy, or maybe I’m just the Dancing Baby of Memes. Anyway, to get to the point, I wouldn’t find any of the things I enjoy online or the utilities that allow my life to run smoothly (on an occasional basis) if the Internet’s architecture wasn’t crafted the way it is. Because of Facebook, Google +, Twitter, 4chan and virtually any method of open communication, we are able to share, discover, and dig deeper into our own unique or newfound interests. Not only that, but they are integrated real-time into our everyday lives! Truly awesome.
The Internet is not shrink wrapped, nor is it sterile. It is raw, refreshing, revealing, revolting, and revolutionary. Sure, I’ll occasionally get a pornographic banner ad on an otherwise innocuous website during the middle of class every now and again, but to me thats all part of the Internet’s charm. The Court has fought attempts to clean up the Internet in favor of free speech on the net, and I wish that was enough to keep free speech alive. But I’m a little bit afraid that commercialization is going to change things, and not for the better. A quick 3 stumbles on the application ‘StumbleUpon’ brought me returns of “Newark State of Mind” (Parody of Jay-Z’s New York Anthem), “This is Why You Don’t Brag About Sexual Encounters on Facebook”, and 6 Reasons We’re In Another ‘Book-Burning’ Period in History (From Cracked, a favorite of mine). Each page is but a spark of the collective flame of creativity of the Internet. But without open channels to fan the flame, this creativity is almost certain to die or be buried beneath massively promoted, publicized, and better funded material.
Yale Law Tech 